Elaheebocus v The State of Mauritius
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown of Eaton-under-Heywood |
| Judgment Date | 25 February 2009 |
| Neutral Citation | [2009] UKPC 7 |
| Docket Number | Appeal No 75 of 2007 |
| Court | Privy Council |
| Date | 25 February 2009 |
[2009] UKPC 7
Present at the hearing:-
Lord Phillips of Worth Matravers
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Brown of Eaton-under-Heywood]
Introduction
In January 1997 four men conspired together to counterfeit Bank of Mauritius banknotes by means of computers. The four men were Harris Ramful, Maheshwar Ragoobur, Mamode Ally Khodabaccus and the appellant. Ramful and Ragoobur were arrested on 27 April 1997 and both later pleaded guilty and were sentenced to six years' penal servitude. The appellant was arrested, provisionally charged and remanded in custody on 29 April 1997. On 8 April 1998 he and Khodabaccus were charged before the Intermediate Court. On 17 June 1998 (after thirteen and a half months in custody) he was bailed. On 31 May 2001 the appellant and Khodabaccus were convicted by the Intermediate Court, the appellant being sentenced to four years' penal servitude, Khodabaccus to three years' penal servitude. Both appealed against conviction (not sentence). Their appeals were heard by the Supreme Court (Balancy and Caunhye JJ) on 21 June 2004 and nineteen months later, on 20 January 2006, dismissed. On 9 February 2006 the appellant (but not Khodabaccus) sought conditional leave to appeal to the Privy Council (again, only against conviction). On 16 October 2006 the Board delivered judgment in Prakash Boolell v The State of Mauritius [2006] UKPC 46 ( Boolell). Prompted by Boolell, at the hearing of the application before the Supreme Court (Balancy and Domah JJ) on 13 June 2007, the appellant sought leave to appeal, not to challenge his conviction, but rather to argue that, because of the delay in concluding his appeal, his custodial sentence should be set aside and replaced by a fine. That application failed. On 24 January 2008, however, the Board granted the appellant special leave to appeal.
The appeal accordingly is something of a curiosity. Section 10(1) of the Constitution provides that "Where any person is charged with a criminal offence, then … the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law". Their Lordships are here concerned, as was the Board in Boolell, only with the reasonable time guarantee under section 10; there was no dispute that the hearing was fair and the court independent and impartial. Unlike the position in Boolell, however, there was in this case no suggestion of any breach of the reasonable time guarantee until long after the proceedings in Mauritius had ended with the dismissal of the appellant's appeal against conviction. As stated, the argument was first advanced on the application, some fifteen months later, for leave to appeal to the Privy Council. What is now submitted is that the Supreme Court should themselves have recognised the breach of section 10 by the time they came to deliver their judgment dismissing the appellant's (and Khodabaccus's) appeals on 20 January 2006 and should of their own motion have substituted fines for the custodial sentences by way of redress. Their Lordships reject this submission as misconceived. They are, however, prepared to regard the application to the Supreme Court on 13 June 2007 for leave to appeal to the Privy Council as if it had been (as plainly it should have been) a constitutional motion asserting as at that date a breach of the reasonable time guarantee under section 10, and to regard the appeal presently before the Board as an appeal from the Supreme Court's decision on 13 June 2007 rejecting such a (notional) constitutional motion.
With that introduction their Lordships must now return to the facts although it is quite unnecessary to set these out at any length. This was in truth a comparatively straightforward case of no particular complexity and, unlike the position in Boolell, it involved no delays for which the appellant himself could properly be said to be reprehensibly responsible.
The conspiracy
The idea of counterfeiting banknotes was hatched by Ramful in the company of Ragoobur and the appellant. The appellant was at the time working as a clerk for Ramful's attorney and in that capacity had assisted and become friendly with Ramful whom he knew to be in serious financial difficulty. The appellant assisted Ramful in the purchase of computers, printers and scanners required for the project, by introducing him both to the supplier, a Mr Muttylall, who provided credit facilities for the Rs 20,000 outlay. Khodabaccus was known to both Ragobur and the appellant and he too joined the conspiracy, in turn bringing in a friend, Salim, who was to help finance the scheme. Salim was to provide 75,000 French francs in return for counterfeit notes amounting to Rs5 million. The appellant assisted also by renting a bungalow at Flic en Flac where the counterfeiting operation took place and by sometimes fetching in a technician when there was a computer breakdown.
When the police raided the bungalow on 27 April 1997 they arrested Ramful and Ragobur and seized various articles including a computer, scanner, printer, counterfeit banknotes and other computer books and documents as well as a pair of sandals belonging to the appellant. A number of statements were then taken from Ramful which deeply incriminated both the appellant and Khodabaccus. The appellant himself then made a series of incriminating statements.
The Intermediate Court trial
The information having been sworn on 8 April 1998, on 15 June 1998 the trial was fixed for 29 October 1998 but on that date was adjourned and refixed for 2 March 1999 because of the late service on the defendants of some 300 pages of statement by the prosecution's chief witness, Ramful. The trial duly began on 2 March 1999 when three witnesses were called by the prosecution—two police officers whose evidence included a description of the bungalow search and details of the appellant's subsequent arrest and written statements to the police, and a computer salesman—and ended two years later on 28 March 2001 when Ramful gave his evidence. Between those dates the case was before the Court on seven other occasions, on only two of which however were further witnesses called: 30 October 2000 when other police evidence was given. On the other hearing days the proceedings were adjourned for this or that reason, usually the convenience of counsel on one side or the other, invariably without objection.
The major evidence against the appellant consisted of Ramful's detailed oral evidence fully implicating him in the conspiracy, of admissions made in the appellant's own statements to the police, and of his presence at the bungalow. No evidence was called by either defendant.
As stated, judgment was given by the Intermediate Court on 31 May 2001 convicting the appellant and Khodabaccus and sentencing them respectively to four years and three years penal servitude (together with a costs order against each for Rr500). In sentencing the appellant the Court observed that this was "indeed a serious offence which calls for a severe custodial sentence" and noted that it was "not [the appellant's] first encounter with justice in connection with offences involving fraud and dishonesty" (whereas Khodabaccus had only one previous conviction, already spent). The appellant indeed had five previous convictions, variously for swindling, embezzlement and forgery between 1990 and 1995, for one of which he had served a two year sentence of imprisonment.
The appeal to the Supreme Court
Notice of appeal against conviction was promptly given, the effect of this being automatically to suspend the operation of the sentence, and on 9 July 2001 the Supreme Court Registry notified all counsel that the case would be mentioned on 13 September 2001 for a date to be fixed. On 13 September 2001 the appeal was duly fixed for hearing on 27 May 2002. Successively, however, the appeal was three times...
To continue reading
Request your trial
-
Omar Anderson v R
...216 In R v Pigott, the cases of Flowers v The Queen (Jamaica), Boolell v The State, Haroon Rashid Elaheebocus v State of Mauritius [2009] UKPC 7, Gangasing Aubeeluck v The State of Mauritius [2010] UKPC 13, Tapper v DPP, Rummun v State of Mauritius [2013] 1 WLR 598, were relied on. For t......
-
Solomon Marin Jr v The Queen
...2 AC 238 (JM); Dumas v A-G of Trinidad and Tobago (Trinidad and Tobago CA, 22 December 2014); Dyer v Watson [2004] 1 AC 379; Elaheebocus v State of Mauritius [2009] UKPC 7, [2009] 4 LRC 783; Elliott v Auckland City [1971] NZLR 824; Evans v A-G (Commonwealth of the Bahamas CA, 6 December 2......
-
Akim Monah v The Queen
...76 WIR 137 applied; Marin v The Attorney General [2021] CCJ 6 (AJ) applied; Boolell v The State [2006] UKPC 46 applied; Elaheebocus v The State of Mauritius [2009] UKPC 7 applied; Tapper v DPP [2012] UKPC 26 considered; Evans v The Attorney General SCCrApp. No 181 of 2010 (delivered 6th ......
-
Urban St. Brice v The Attorney General of Saint Lucia
...Gibson v The Attorney General of Barbados [2010] CCJ 3 (AJ) considered; Prakash Boolell v The State [2006] UKPC 46 applied; Elaheebocus v The State of Mauritius [2009] UKPC 7 applied; Abeeluck v The State of Mauritius [2010] UKPC 13 applied; Section 8(1) of the Constitution of Saint Luci......